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Home | Q & A on 2GB discussing Family Law 29/07/2014

Family law specialist once again on 2GB

Tuesday, 29 July 2014

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CS       From Turner Freeman we’ve got Paul Sant in the studio once again. Do you like our new surround our new abode Paul?

PS       It’s a bit different Chris

CS       It is a bit different, now have we got you on the right microphone? Can we press a few magic buttons here and try and get second microphone, here we go, try again

PS       Is it working can you hear me

CS       Yes we’ve gotcha. I thought the gremlin had returned but no, we are all good. 131873 is the telephone number. Now as has been the case in the last couple of weeks, what we do we will choose the question of the day from our callers on 131873. The question of the day and that lucky listener will be provided with a $100 Westfield voucher courtesy of Turner Freeman. A $100 Westfield voucher each week we do this, so the best question that we can field on the open line this afternoon for Paul, will get a $100 Westfield voucher. Always comes in handy when you head off to Westfield. By the way Turner Freeman is now appearing in your local newspaper, so if you get your local rag out you will probably see one of their columns providing information on a range of legal topics in the weekly legal matters column. You can check out this week’s column on Family Law as well, which will coincide with our programme this afternoon. 131873 it’s not often you get free legal advice, but this is a chance to talk with Paul. Now I want to talk about how over the years there has been a controversy as to whether special skills should be given extra weight in Family Law property proceedings. Now just explain to me what counters, or what counts for special skills and you’ve got 2 cases to talk about as well

PS       This has arisen from the recent from the recent decision of the Full Court matter a case called Kane and Kane. And what happened in that matter, that was a relationship of about 30 odd years, 4 children. About a year before the separation, the husband after much research and work decided to invest some $539,000.00 of his super of the parties’ super fund into a particular company by way of shares. Apparently the wife disagreed with this but the husband went ahead and did it. Anyway a year later they split it goes to Court and the argument put forward by the husband which was accepted by the trial Judge, those share then when it came to hearing that 530,000 odd dollars was worth $1.85 million, and that accounted for about I think two thirds of the whole asset pool, a big chunk. So his argument was it was my special skill, my research, my out of the ordinary work

CS       My understanding of the share market

PS       And therefore I’m entitled to a larger chunk and the trial Judge accepted the argument and made reference to this so called doctrine of special skills and what the trial Judge did the non super fund asset component he split that 50/50 long marriage as you’d expect, but the super fund, which was worth as I said about 1.8 mil, he split that 2/3rd – 1/3rd, so he gave the husband overall, gave the husband 63/64%. Now that was the case of Kane and Kane at the same time there was another case that followed it of Smith and Fields and in that case, again it was a 30 year marriage, but in that case the Judge said no there no such, we can’t use this doctrine of special skills we’ve got to use the traditional method of looking at the contributions to the acquisition, conservation and improvement of the assets, so there was, we are starting to get different cases, different results

CS       Yep

PS       Some, it was of the view that this doctrine of special skills only related to big money cases and it was true, it was cases

CS       Why shouldn’t it apply to parenting and house-keeping

PS       Well that was the other argument. It is discriminatory because you, it’s hard to use the doctrine of special skills when ones rule is parent and home maker. Anyway Kane and Kane, that first case went off to appeal, it was finally decided last year, late last year and basically they have rejected this doctrine of special skills, they have said that that would lead to and in the particular case by the trial Judge it led to a decision which wasn’t fair and equitable

CS       What an interesting debate though

PS       It was, it is and I’m not 100% convenienced it’s dead and buried

CS       I agree

PS       Because there is

CS       I agree

PS       I often say there is more than one way to skin a cat, because you can almost, I mean to can’t get the same result under the general principles but because the Courts have got a wide discretion in determining the entitlements based on the contribution, you can’t say it’s not proper to say that because of your expertise, you just by or sorry not to say that, you can’t say that a Judge can’t give more weight to someone because of particular expertise or skills or whatever it happens to be

CS       Special skills, what is special. The definition of special, that’s the thing. Alright lets go to some calls, Tracey you’ve got a question for Paul, go right ahead

C1       Yes good morning Paul. Paul my 10 year old granddaughter is forced to see her dad who has only came into her life in the last 4 years. Before that she didn’t know that he existed and wasn’t part of her life. Now it’s to the extent that on change over, this little 10 year granddaughter locks herself in the car and is screaming hysterical and doesn’t want to go, like she every week she just does not want to go with him, but the law says she has to go with this man

PS       Are there Court Orders in place, or is this just an agreement between the parties

C1       No, no there is a Court Order in place that every second weekend and every second week of the school holidays she has to go to him

PS       Was there a period of transition, I would have thought that if she hadn’t had contact or hadn’t spent time with the father for 4 years, re-establishing contact, it would have been done by way of a gradual transition, such as a couple of hours this weekend and let that ride for a couple of months and then we’ll do a little bit more for a few more months, did that occur

C1       Yes she was only 6 and she had to go with him for 1 day every second weekend and then he went back to Court and asked for 2 days and the Court keeps allowing this because he is the dad

CS       This is quite common Tracey, let’s hear what Paul has to say, this is quite common Paul,

PS       It is common

CS       In that both parents may be in agreeance that you know, young Nancy has to go to dad’s house this weekend but Nancy just doesn’t want to go that weekend

PS       Look it is common. The Courts, look they are obliged by the principle that it is in the best interest of the child to have a regular and meaningful relationship with both parties, with both parents, ok. Now so we’ve got this provision whereby the child is to spend time with the parent with whom she doesn’t live with, the child doesn’t want to go, if you simply refuse the child to go then you will be met with a contravention application where you would have to explain to the Court as to why you wouldn’t let the child go. Now alright if the child locks herself in a room and didn’t want to go etc, I don’t think you are going to be criticized for that, but look there are courses, around which really deal with these issues and that is something that I think, well both parents should consider undertaking to understand and better deal with the child

CS       So just as a footnote to your query Tracey, are you saying because that child does not want to go with dad, she should not be made to go with dad?

C1       Well, you know like last weekend he literally pulled her out of the car hurting her arm, dragging her screaming into his car. Well I then rang the police and said I need you to go and make sure that this little girl is ok

PS       Yes well that wasn’t appropriate, something like that shouldn’t happen

C1       And really didn’t want to go. And it’s happening every time he has to have her, she just really doesn’t want to go

CS       I can understand his point of view, he wants to continue the relationship with his daughter hoping that she’ll turn around and they’ll be able to have a relationship but at the same time I understand what the little girl is going through, in some ways its best for both parents to think about what’s best for the child

PS       For the child

CS       And walk away

PS       That’s exactly right

CS       Until things calm down

PS       Now both parents have a responsibility to do, to act reasonably and do what is required to put these orders into effect

CS       In the child’s interest and

PS       But in the child’s, correct and often people are focused on their needs or their interest rather than that of the child

CS       That’s very true, Sean hi

C2       Hi

CS       Go ahead

C2       Mate, I’ve got a 16 year old daughter, step-daughter sorry. I’ve been in her life since she has been 2 years old. Now her father has not wanted a bar of her since I’ve known her, but she wants to go and find him, my wife as you can imagine is very sceptical I can see her point of view, but is there any way my wife can prevent her or is going to happen whether she likes it or not

PS       I’m not an expert is that field, but I would think that it will happen whether a parent likes it or not, I think the entitlement is on behalf of the child to make those enquiries

CS       But at 10

PS       No, 16

CS       16 or 10 Sean, 16

C2       16, yes

PS       Yes 16 see, I think 14 or above I think they can do that, I think it also depends upon whether the father wants to be identified, I’m not sure how that register or how that system works.

C2       I don’t work in that field so I can’t really tell you, but I think at 14 they have got rights to make those enquiries

CS       And look curiosity kills the cat Sean, I’m not talking from a legal prospective at all as you can imagine, but I would have thought at some stage that child if it’s in her mind at 16 that she was curious enough to make contact to find out what he was like or whatever she is going to do it anyway at some stage, maybe its best just to get on board but I don’t know the relationship you’ve got

PS       Get it over and done with

CS       Get it done

C2       I told my wife the same thing, I said just let her go and do it and if she gets hurt then we’re here to pick her up and she’ll come back crying to us

CS       And that’s life, things upset kids and when they go and search for their natural parents and sometimes it can be very, very upsetting, that’s what parents are there for, good luck with all that mate, thank you, we’ve got to take a break, twelve and half minutes away from two. We’ll take your calls the best caller as I’ve indicated today, the most interesting call will get that $100 Westfield voucher. Turner Freeman sponsors this segment, its legal matters with Paul Sant.

Thank Don for the information there is a major water leak on the corner of Cross Street and Cook Street in Baulkham Hills, it appears to be a ruptured main under the Street which is wasting a serious amount of water and undermining the bitumen, we advised Sydney Water two weeks ago but nothing has happened, I hope you’ll be able to follow this up and see if the public authorities get off their backsides. Major water leak corner of Cross Street and Cook Street Baulkham Hills, we will make a call on your behalf Don, thank you very much for that information, back with Paul Sant and to callers, John go right ahead

CS       Go ahead John, you are on

C3       How are you

CS       I’ve gotcha now go ahead

C3       Ok good, good. Two parts to this scenario, my wife and I are currently separated, when we separated I made the decision to allow her to keep the car, to obviously transport our son to and from school etc, it was in my name and I was sending payments to her to pay actual car on our behalf and she hasn’t been making the payments, I’ve also been paying child support at $250.00 per week to obviously support our son and now he is being moved to Newcastle without my consent and I wanted to see whether or not I should be seeking legal advice, cause at the moment we are going through Relationships Australia to save on those legal costs and obviously they provide a free of charge service as you’d know and I’m feeling like now I’m being pushed into a corner basically because Newcastle is a fair way away from the CBD where I live and like I said she hasn’t actually consulted with me on this move and she is basically going to do it to move up there with her new boyfriend, I want to know what I should do

PS       Are there any orders in place whereby the child is to spend time with you or any agreement by way of parental plan?

C3       No the agreements are just being done,

PS       Verbally

C3       Through consultation with Relationships Australia and as you’d know they are not actual legal parent orders

PS       Look the difficulty is it’s a balancing act between, let’s say trying to maintain the status quo trying to keep things as they are and ones freedom to travel to move where one wishes. Look Newcastle in my mind isn’t as difficult as for example wanting to move to Darwin or Perth or along those lines. I’ve seen cases where a party has taken children and move without the other parties consent, I think the case I’m thinking of was Darwin and they were actually forced back. Moving to Newcastle a Court could/would say we can accommodate that by allowing greater times spent with, during school holidays and other times. Has the move taken place?

C3       Not as yet

PS       Well in theory one could, whilst things are being negotiated or whilst there are Court processes on foot, a Court would like to maintain the status quo. Now I suppose you’ve got the option to go to the Court and say look we haven’t reached an agreement we are in the process of discussions, I want to restrain her from moving to Newcastle pending a final order which is this that I’m asking for. Whether you’ll succeed or not as I say, they talk about Sydney metropolitan area as up as far as Gosford, the Mountains and down as far as Wollongong, it’s very hard to restrain someone moving within that area

CS       But it also sounds like you need to probably make a serious decision about where you take the relation to at this stage as well

C3       Yeah I agree. Do you think that I should maybe get some concrete consent orders in place,

PS       Definitely, Relationships will try and usually work out a parenting plan and you will reduce that into writing by way of consent orders, definitely

C3       But it’s not binding is it, anything that’s done

PS       Parenting plan is not binding but once you’ve reached that agreement it is relatively easy to get it to formulate to consent orders to file them as consent orders, if need be you could almost do it through a Local Court, you could almost do it on the spot

C3       Fair enough, great stuff, thanks so much

CS       Hey John before you leave us, I’m going to get you the $100 Westfield voucher, how’s that

C3       That sounds good, I’ll spend it on my son

CS       Well just for participating in the programme and it is a question that would be rather common for separated couples and then they have got to make serious decisions about where the go with the relationship and you know what’s happening to the other party, it’s a difficult position to be in. So $100 Westfield voucher, stay right there John, don’t move, we will put you through to Shannon and we will make arrangements for all of that courtesy of Turner Freeman, I’ve run out of time Paul we could have gone on forever, thank you so much for coming in

PS       Thanks Chris

CS       And I’m glad the microphone works

PS       It worked

CS       Isn’t that great, we rang Paul before and just stay back in the office we don’t have microphones and then when they came on we got him to rush back in, thank you mate

PS       But I’d prefer the other studio, I think

CS       I do too, more comfortable, bigger. Paul Sant from Turner Freeman.

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